The Jammu and Kashmir and Ladakh High Court today directed the UT administration to allow the family of Amir Magrey, the fourth person killed in Hyderpora Encounter, to perform Fatiha Khawani (religious rituals/prayers after burial) at his grave.
The division bench comprising Chief Justice Pankaj Mithal and Justice Javed Iqbal Wani also upheld the the single bench direction to the extent of paying a compensation of Rs.5.00 Lakhs to the family. It observed that the government prima facie acted unfairly inasmuch as notwithstanding the allegation that Amir was a terrorist, even if it may be assumed, as such, that he relinquished his right to be buried after performance of last rites performed by his family members in accordance with the faith professed by him, yet "the said right of burial and performance of last religious rituals of deceased available to the family members could not have been denied."
The bench was hearing UT's appeal against the single judge order.
The High Court noted that Amir's family sought permission to see his face by opening his grave. However, it refused to pass any order on this aspect, stating that Amir's father had given up the prayer for exhumation of his son's body for performance of last rituals and in any case, the dead body would have started decomposing immediately after the burial.
Earlier, in June 2022, the Division bench of Justice Ali Mohammad Magray and Justice Wasim Sadiq Nargal had the stayed operation of the single judge's order directing authorities to exhume Amir's body. The single judge had also directed the authorities to pay a compensation of Rupees 5 Lakh if the body was highly putrefied and not in a state to be delivered back. The Single Judge had also directed the respondents to make appropriate arrangements for transportation of the dead body to the village of the petitioner in accordance with the religious beliefs of the deceased.
Aggrieved of the single bench order the UT administration had challenged the same before the division bench which as an interim relief had stayed the operation of the single bench judgement till next date of hearing.
Challenging the interim order in an SLP before the Supreme court the father of the deceased had submitted that he was not pressing the relief of exhumation of the body and was only pressing for performance of last rights and compensation. The Supreme court had thereafter directed the High court to decide the matter within a week in terms of the change of the stand the petitioners had undergone.
Case Title: Union Territory of J&K and others Versus Mohammad Latief Magrey and another
Citation : 2022 LiveLaw (JK) 54